Bourg v. State

484 S.W.2d 724, 1972 Tex. Crim. App. LEXIS 1903

• Court: Court of Criminal Appeals of Texas
• Decided: June 21, 1972
• Docket: 45119
• Status: Published

Opinions

OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of unlawful sale of a narcotic drug, to-wit: marihuana. The punishment was assessed by the jury at ten years.

The sufficiency of the evidence is not challenged. Appellant brings two grounds of error; the first contention is that the prosecutor injected new and harmful fact, not in evidence, into the case during his closing argument when he told the jury: “He (the appellant) is just as big a pusher as we have ever had in Jefferson County, Texas, and he needs to go to the penitentiary.”

The record reflects the following:

“MR. OLDHAM (Defense Counsel) Your Honor, we object to that argument. There is no testimony here that he is as big a pusher as we have ever had in Jefferson County, Texas. And it is prejudicial and I object to it.

“THE COURT: The jury will evaluate the arguments to the jury, counsel.”

There are two reasons why this ground of error is without merit. First, the appellant failed to get a ruling to his objection to such statement. No further relief was sought and the error, if any, was waived. Second, the argument is supported by testimony in the record from which this deduction could reasonably have been made. For example, during the cross-examination of a state’s witness the following is revealed:

“Q. And what was the occasion for Teddy Joe Trahan to take you over to Paul Bourg’s?

“A. He wanted to introduce us to the biggest marihuana character in Jefferson County.

“Q. Now, Teddy Joe Trahan was a known police character, wasn’t he ?

“A. Yes, sir.

“Q. And he had made sales to Mr. Capo?

“A. Yes, sir.

“Q. And now you say he told you that Bourg was ‘big time’ ?

“A. He was getting his stuff from Bourg.”

Appellant’s first ground of error is overruled. See, e. g., Verret v. State, Tex.Cr.App., 470 S.W.2d 883.

Appellant’s final ground of error asserts that State’s Exhibit No. 6 was not properly identified.

The record shows the following:

“Q. You marked the evidence?

“A. Yes, sir.

“Q. Would you examine State’s Exhibit Number Four, Five and Six and tell me whether or not those three bags could be identified, just the bags?

“A. Yes, sir. I have the date and my initials, the time and Officer Capo’s initials.”

No error is shown.

The judgment is affirmed.

APPELLANT’S MOTION FOR REHEARING

Rehearing denied.